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Legislation to prevent deliberate falsehoods surrounding elections has moved to the Michigan Senate for a potential vote in the lame duck session.
Introduced by state Sen. Mary Cavanaugh (D-Redford Twp.) in February, Senate Bill 707 passed through the Senate Elections and Ethics Committee on Wednesday and is slated to come to the full Senate for a vote next week, with Democrats trying to pass legislative priorities while they maintain control of the Legislature with Republicans set to gain a 58-52 majority in the state House in January.
The committee voted 5-0 to pass the legislation onto the full Senate, with state Sens. Ruth Johnson (R-Holly) and Ed McBroom. (R-Vulcan) passing.
The bill seeks to amend Michigan Election Law so that anyone making a false statement or misrepresentation about an election with the intent to impede or prevent another individual from voting could face a civil fine of up to $1,000 per violation, while an employer who hired someone for such a purpose could be fined up to $10,000.
Michigan Supreme Court sides with Nessel on question in right-wing robocall case
Criteria included under the bill would cover false statements about the time, place or manner of an election; qualifications for or restrictions on voter eligibility; criminal penalties associated with voting in an election; and an individual’s voter registration status or eligibility.
“In recent years, voters have faced disinformation campaigns in the form of robocalls, letters and posted signage giving incorrect information about elections, mail-in voting or voting eligibility, such as criminal record and right to vote,” Cavanaugh told the committee. “In 2020, I saw firsthand while running for office as state representative, prior to my service in the Senate, where I witnessed postings and statements meant to drive away voters from the polls usually targeted in marginalized communities, specifically in my Detroit area.”
Cavanaugh referenced the case of Jack Burkman and Jacob Wohl, who were charged in 2021 by Michigan Attorney General Dana Nessel with multiple felonies including voter intimidation and using computers to commit crimes against election laws. Burkman and Wuhl, right-wing activists who had a history of manufacturing conservative conspiracy theories, are accused of making tens of thousands of robocalls, 12,000 of them in Detroit, spreading misinformation about voting across Midwestern states ahead of the 2020 presidential election.
Authorities say the recorded robocall message falsely told people that mail-in voting, in particular, would allow personal information to become part of a special database used by police to track down old warrants and by credit card companies to collect outstanding debts. It also claimed, again falsely, that the Centers for Disease Control and Prevention would use the information to track people for mandatory vaccines.
Burkman and Wohl have contested their bind over for trial, arguing their misinformation was protected by the First Amendment, and that their actions were not “menacing” with threats of violence, as required by the statute they were charged under.
After the Michigan Court of Appeals declined to dismiss the case, the Michigan Supreme Court ruled 5-2 in June that the charges were justified under wording in the statute about “other corrupt means or device,” and sent the case to be decided in that context back to the appeals court, where arguments were heard in October. A decision remains pending.
Cavanaugh’s legislation would address that ambiguity by specifically targeting intentional misinformation designed to hamper or obstruct the right to vote.
She was questioned on that point by the committee’s two Republican members.
“One of the mistakes I’ve seen frequently when it comes to elections is people say you vote on the first Tuesday of November, and technically speaking, that’s not correct. How are we going to determine whether or not that was just typical carelessness and not understanding the nuance that it’s the first Tuesday after the first Monday, versus somebody who intentionally is trying to do this? That’s what I’m trying to drill down to,” said McBroom.
Cavanaugh responded that she worked with the American Civil Liberties Union (ACLU) and legal experts to guarantee that the bill covers intentionally made false election claims rather than accidentally.
“The legislation specifies that the individual must know that the statement is false, as well as the Michigan Supreme Court ruled [in a] 5-2 majority opinion that the First Amendment protections do not extend to intentionally false speech about election misinformation,” she said.
Kyle Zawacki, the legislative director for the ACLU of Michigan, said the Michigan Supreme Court’s ruling in the case clearly stated that First Amendment protections did not extend to intentionally false speech about election misinformation.
“The ACLU of Michigan is committed to ensuring that every Michigander has the opportunity to vote freely and without interference or intimidation,” said Zawacki. “It is well documented that intentional misinformation or disinformation undermines voter confidence. False information regarding the time, place, or election procedure can mislead voters, discourage participation, and disenfranchise voters who may not have access to clarifying information. Historically disenfranchised groups, non native speakers, new voters, elderly and elderly voters are particularly susceptible to election related disinformation.”
McBroom said his concerns were not about the intent of the legislation, but specifically how it would be enforced.
“It’s very clear what was being intended there to any reasonable person, any reasonable standard, these people are trying to disenfranchise those voters. But the law is always more problematic on the edges, where it’s less clear,” said McBroom. “How do we get clarity about what is the standard for determining intent or not? Is it clear and convincing? Is it a preponderance of the evidence? Is it negligence? Is it gross negligence? What is the standard that the court will use to determine whether it was [intentional] or not?”
Zawacki said he believed current statutes covering intent would apply, but said the ACLU of Michigan would be open to further conversation if that needed a clearer definition.
It was also later clarified by committee chair, Sen. Jeremy Moss (D-Southfield), that the statute, if passed, would be enforceable by not only the Michigan Attorney General’s Office, which typically handles election violations, but also could be prosecuted at the local level, as well.
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